dissenting. The majority opinion holds that this case should be reversed for two reasons: (1) a co-conspirator’s statement made after the conspiracy ended was introduced into evidence, and (2) a videotaped confession of a witness was not allowed into evidence.
I do not think the case should be reversed for either reason.
Appellant was charged with capital murder, Ark. Stat. Ann, §41-1501 (Repl. 1977), and with conspiracy to commit capital murder, Ark. Stat. Ann. § 41-707 (Repl. 1977). She was found guilty of the conspiracy charge which only requires an agreement with someone to aid in the planning or commission of the crime and an overt act in pursuance of the conspiracy.
There was testimony by Linda Bloch that appellant told Linda that appellant’s husband, Wade Smith, abused her and her children; that there was a $100,000.00 life insurance policy on Wade’s life; that it would be worthwhile if someone killed him; and that she wanted to know if Linda’s husband, Fred, would do something about it.
Linda testified that she told Fred about appellant’s statement and as a result there was a discussion between appellant and Fred, with Linda present, in which Fred agreed to get in touch with someone who would do the job. Linda said Fred called Larry Welch, with whom Fred had been in prison, and Larry came to Texarkana from California and stayed at the Bloch home. An attempt on Wade Smith’s life failed and Larry went back to California.
Later, Linda was present when Fred and appellant discussed making a second attempt on Wade’s life. They agreed it would be done at Wade’s farmhouse and that appellant would pay $10,000.00 to have it done. Linda said appellant gave Fred money for Larry’s expenses to come back to Texarkana; that he arrived on a Tuesday and that same day Linda drove Fred and Larry out to Wade’s farmhouse for them to look it over; and that the next morning Fred and Larry got up early and left the house.
Linda testified that Fred was supposed to meet Wade at the farmhouse that morning to help Wade with some doors and, at Fred’s request, she called Wade and told him Fred would be a little late but would be there. Later that morning Larry called her and said it was “okay” which was a planned signal that meant Wade had been killed. She then went to appellant’s place of business and told her that Larry had called and appellant gave Linda a package to give Fred, Linda testified that Fred had told her that the package would be the money appellant was to pay for Wade’s killing.
This evidence was sufficiently connected by other evidence in the record, especially appellant’s statement made shortly after arrest, so as to be admissible under Uniform Evidence Rule 801 (d) (2) (v) and the cases of Patterson v. State, 267 Ark. 436, 591 S.W.2d 356 (1979) and Smithey v. State, 269 Ark. 538, 602 S.W.2d 676 (1980). Both appellant’s brief and the majority opinion concede this. But what they contend was inadmissible is Linda’s testimony that two days after Wade Smith’s funeral Fred told her that Larry told him that Larry got in the back window, waited in the hallway for Wade, and when Wade came in the house Larry shot him.
I submit that the admission of that evidence is not prejudicial error. All it can prove is that Larry in fact killed Wade and that was not even necessary for appellant to be guilty of conspiracy. Without that evidence, there was evidence conceded to be admissible, that Larry killed Wade. And as proof that there was no prejudice, the jury did not find appellant guilty of capital murder and fixed her sentence for conspiracy at only seventeen years instead of the maximum of fifty years which it could have fixed. Ark. Stat. Ann. §§ 41-707 and 41-901 (Repl. 1977).
In Weber v. State, 250 Ark. 566, 466 S.W.2d 257 (1971), the court said if the testimony objected to was inadmissible it certainly had not been demonstrated that it was prejudicial and, therefore, no error could have occurred. In Martin v. State, 248 Ark. 188, 451 S.W.2d 453 (1970), the court said that the admission of evidence showing motive was not prejudicial in a prosecution for second degree murder where the defendant was convicted of the lesser offense of voluntary manslaughter in which motive is not a necessary element.
The court’s refusal to admit the videotaped confession involved the testimony of a witness by the name of John Young who was called to the stand by the defense. This man was asked if he murdered Wade Smith and he said he did not. He admitted, however, that he had previously given a statement in which he stated he did kill Smith but testified that he was forced to make the statement by the police who locked him up in jail, without a phone call or lawyer, and who hit him in the mouth and “stuff like that.”
A statement by Young had been videotaped and this was offered in evidence by appellant and overruled by the court. I fail to see any reversible error in the trial court’s refusal to admit the tape.
In Donnelly v. United States, 228 U.S. 243, 273, the United States Supreme Court said:
In this country there is a great and practically unanimous weight of authority in state courts against admitting evidence of confessions of third parties made out of court and tending to exonerate the accused.
As Donnelly explained, such evidence is “mere” hearsay. Under Uniform Evidence Rule 801, however, a prior statement is not hearsay and may be considered as substantive evidence in a civil case but this is not true in a criminal case unless the prior statement was made under oath and subject to the penalty of perjury. David v. State, 269 Ark. 498, 601 S.W.2d 864 (1980);Hackett v. State, 2 Ark. App. 228, 619 S.W.2d 687 (1981); Uniform Evidence Rule 801 (d) (1) (i).
Since it is not even contended that the videotape was given under oath, it clearly was not admissible as substantive evidence from which the j ury could find that John Young in fact killed Wade Smith.
It is true that a prior inconsistent statement may be admitted for the limited purpose of impeaching a witness. Comer v. State, 222 Ark. 156, 257 S.W.2d 564 (1953); Hackett, supra. But here Young admitted that he said in his previous statement that he killed Wade Smith. In that situation there was no necessity for proving the prior statement and it was therefore not admissible either by videotape or by typed transcription. Humpolak v. State, 175 Ark. 786, 300 S.W. 426 (1927). If, however, the statement was admissible, the typed transcription was introduced and I would not reverse this case just so a jury could view a videotape which, at most, could only prove that John Young was untruthful. Uniform Evidence Rule 403 provides that even relevant evidence may be excluded upon considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
I would affirm.